TAFT, Circuit Judge,
after stating the case as above, delivered the opinion of the court.
The appellee seeks to sustain the dismissal of the bill on certain preliminary grounds, which must first be considered. It is contended that the jurisdictional amount in controversy is not sufficiently alleged in the bill, and, even if alleged, that it is denied by the answer, and no proof offered to sustain it. The amount in controversy in the action is the value of complainant’s alleged right to have a siding built, and to have live stock in car-load lots received and delivered by the railroad company at its stock yards. The averment of the bill is that the injury and damage done to its business by the refusal of the railroad company to afford to it such transportation and shipping facilities is irreparable, and largely exceeds the amount of the sum of $2,000. The damage done by the refusal is to be estimated by the value of the right denied, and therefore the allegation that the damage largely exceeds $2,000 is inferentially a statement that the value of the right denied is largely in excess of $2,000. Even if this averment refers, as claimed by counsel, to damages sustained by complainant before the filing of the bill, it gives rise to the necessary implication that the subsequent permanent injury, unless enjoined, will exceed in pecuniary amount that already suffered, because the past damages only covered a period between the demand and the filing of the bill. We think a liberal construction of the bill must be given to sustain the jurisdiction of the court at this time, in view of the fact that no plea to the jurisdiction was made below, and no question of the jurisdiction seems there to have been raised. But it is said that the averment to the jurisdictional amount is denied by the answer, and is not sustained by any proof. It was decided in Wickliffe v. Owings, 17 How. 47, that where a bill in chancery avers that the defendant is a citizen of another state, this averment can only be impugned in a special plea to the jurisdiction of the court, and that the answer is not a proper place for it, under the thirty-third equity rule governing the practice in the federal courts. By pleading to the merits, the defendant admits the averments in the bill which state facts sufficient to establish the jurisdiction of the court. Sheppard v. Graves, 14 How. 505; De Sobry v. Nicholson, 3 Wall. 420. The objection to the jurisdiction- of the circuit court, therefore, is not sustained.
The second objection is that the suit is prematurely brought, because there was no offer to pay the cost of building the side track before the filing of the bill, and there was no demand for the building of the side track after complainant had obtained license from [41]*41the city to build across the 40-foot strip and before the filing of the bill. As the cost of the siding is tendered in the bill, as the answer denies the right of complainant, by tender or otherwise, to have the siding, and as, in any decree which might be rendered against the defendant, payment by the complainant of the necessary amount could be made a condition precedent La any relief, we think this is rather a technical objection, which could be obviated by a provision as to costs, and is one upon which we would not place our decision.
Next, it is said that the court of equity will not attempt to enforce the remedy here sought, because it will involve a continuous supervision by the court of transactions between the complainant and the defendant, which, would tax the court with the details of superintendence beyond anything a court of equity will undertake; and a number of cases are cited to the point. We think the objection cannot be sustained. The rule relied upon by the defendant is one which it is very difficult accurately to state. Ño clear line has been drawn between cases where a court of equity will act and will decline to act. The conclusion depends very largely upon a sound, legal discretion of the court exercised with reference to the peculiar circumstances of each application for its aid. It is sufficient for the purposes of this case to say that in Stock-Yards Co. v. Keith, 139 U. S. 136, 11 Sup. Ct. 461, the supreme court sustained an order of the circuit court by which a railroad company was required either to furnish facilities for the unloading or loading of live stock without charge at the stock yards where it was then receiving and discharging live stock, or to permit the complainant in that case to erect on the railway line chutes and yards for the proper loading and unloading of cattle under reasonable regulations of the railroad company. If such an order might be made and enforced by a court of equity, we know no reason why the relief here prayed for, if the complainant is entitled to it on the principles of equity, may not also be granted.
Next, it is objected that the court will not compel the defendant to be a trespasser, and that it would be a trespasser if it laid a track across the 40-foot strip which separates complainant’s land from Front street. The contention is that the license granted by the city to the complainant to lay such a track was beyond the power of the city, because the 40-foot strip was limited in its use by the grant to public landing purposes. Until this objection is made by the grantor, and while those in possession and enjoyment of this strip permit the occupation contemplated, we do not think that the defendant can use the terms of the grant as any excuse for refusing to discharge a plain duty. It is very questionable whether the use of the strip for shipping purposes by side tracks is such a departure from the use enjoined as to be the subject of complaint by the grantor, and certainly, until he attempts to enforce a forfeiture, it does not lie with the railroad company to raise the ob-' jection.
Next, it is insisted that the court will not establish a right that may be dissolved at the will of the defendant. The railroad company [42]*42reserves the right in its contract with Bush to take up the spur track at any time, and therefore it is said that it cannot be compelled to do that for the complainant which it might at once cease to do by taking up the track. This objection is untenable. The gravamen of the charge in the bill is that the railroad company is discriminating against the complainant, and in favor of those to whom sidings from the spur track are permitted, and that it should be granted equal facilities with such persons. The prayer is in form for an injunction against the discrimination. If the spur track is taken up, then all who enjoy it will be placed on an equal footing and at an equal disadvantage. But complainant’s claim is that, while others enjoy the spur track, it also should have the same facilities. It is clearly no defense to a charge of discrimination that the facilities furnished the favored person may be withdrawn at the will of the one who grants them.
We are therefore brought to the issue whether or not there is any discrimination between those who have side-track connections on Front street and the complainant. This depends on two questions: First. Is it a discrimination which'can be controlled or restrained by the courts for a railroad company to furnish a side track to one of its customers, and to refuse such accommodation to another similarly situated? Second. Conceding an affirmative answer to the first question, is there such a difference between the facilities demanded by the complainant and those extended to its neighbors on Front street, in respect of the comparative burdens which must be assumed by the railway company in granting them, as to justify the latter in making the distinction it insists upon?
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TAFT, Circuit Judge,
after stating the case as above, delivered the opinion of the court.
The appellee seeks to sustain the dismissal of the bill on certain preliminary grounds, which must first be considered. It is contended that the jurisdictional amount in controversy is not sufficiently alleged in the bill, and, even if alleged, that it is denied by the answer, and no proof offered to sustain it. The amount in controversy in the action is the value of complainant’s alleged right to have a siding built, and to have live stock in car-load lots received and delivered by the railroad company at its stock yards. The averment of the bill is that the injury and damage done to its business by the refusal of the railroad company to afford to it such transportation and shipping facilities is irreparable, and largely exceeds the amount of the sum of $2,000. The damage done by the refusal is to be estimated by the value of the right denied, and therefore the allegation that the damage largely exceeds $2,000 is inferentially a statement that the value of the right denied is largely in excess of $2,000. Even if this averment refers, as claimed by counsel, to damages sustained by complainant before the filing of the bill, it gives rise to the necessary implication that the subsequent permanent injury, unless enjoined, will exceed in pecuniary amount that already suffered, because the past damages only covered a period between the demand and the filing of the bill. We think a liberal construction of the bill must be given to sustain the jurisdiction of the court at this time, in view of the fact that no plea to the jurisdiction was made below, and no question of the jurisdiction seems there to have been raised. But it is said that the averment to the jurisdictional amount is denied by the answer, and is not sustained by any proof. It was decided in Wickliffe v. Owings, 17 How. 47, that where a bill in chancery avers that the defendant is a citizen of another state, this averment can only be impugned in a special plea to the jurisdiction of the court, and that the answer is not a proper place for it, under the thirty-third equity rule governing the practice in the federal courts. By pleading to the merits, the defendant admits the averments in the bill which state facts sufficient to establish the jurisdiction of the court. Sheppard v. Graves, 14 How. 505; De Sobry v. Nicholson, 3 Wall. 420. The objection to the jurisdiction- of the circuit court, therefore, is not sustained.
The second objection is that the suit is prematurely brought, because there was no offer to pay the cost of building the side track before the filing of the bill, and there was no demand for the building of the side track after complainant had obtained license from [41]*41the city to build across the 40-foot strip and before the filing of the bill. As the cost of the siding is tendered in the bill, as the answer denies the right of complainant, by tender or otherwise, to have the siding, and as, in any decree which might be rendered against the defendant, payment by the complainant of the necessary amount could be made a condition precedent La any relief, we think this is rather a technical objection, which could be obviated by a provision as to costs, and is one upon which we would not place our decision.
Next, it is said that the court of equity will not attempt to enforce the remedy here sought, because it will involve a continuous supervision by the court of transactions between the complainant and the defendant, which, would tax the court with the details of superintendence beyond anything a court of equity will undertake; and a number of cases are cited to the point. We think the objection cannot be sustained. The rule relied upon by the defendant is one which it is very difficult accurately to state. Ño clear line has been drawn between cases where a court of equity will act and will decline to act. The conclusion depends very largely upon a sound, legal discretion of the court exercised with reference to the peculiar circumstances of each application for its aid. It is sufficient for the purposes of this case to say that in Stock-Yards Co. v. Keith, 139 U. S. 136, 11 Sup. Ct. 461, the supreme court sustained an order of the circuit court by which a railroad company was required either to furnish facilities for the unloading or loading of live stock without charge at the stock yards where it was then receiving and discharging live stock, or to permit the complainant in that case to erect on the railway line chutes and yards for the proper loading and unloading of cattle under reasonable regulations of the railroad company. If such an order might be made and enforced by a court of equity, we know no reason why the relief here prayed for, if the complainant is entitled to it on the principles of equity, may not also be granted.
Next, it is objected that the court will not compel the defendant to be a trespasser, and that it would be a trespasser if it laid a track across the 40-foot strip which separates complainant’s land from Front street. The contention is that the license granted by the city to the complainant to lay such a track was beyond the power of the city, because the 40-foot strip was limited in its use by the grant to public landing purposes. Until this objection is made by the grantor, and while those in possession and enjoyment of this strip permit the occupation contemplated, we do not think that the defendant can use the terms of the grant as any excuse for refusing to discharge a plain duty. It is very questionable whether the use of the strip for shipping purposes by side tracks is such a departure from the use enjoined as to be the subject of complaint by the grantor, and certainly, until he attempts to enforce a forfeiture, it does not lie with the railroad company to raise the ob-' jection.
Next, it is insisted that the court will not establish a right that may be dissolved at the will of the defendant. The railroad company [42]*42reserves the right in its contract with Bush to take up the spur track at any time, and therefore it is said that it cannot be compelled to do that for the complainant which it might at once cease to do by taking up the track. This objection is untenable. The gravamen of the charge in the bill is that the railroad company is discriminating against the complainant, and in favor of those to whom sidings from the spur track are permitted, and that it should be granted equal facilities with such persons. The prayer is in form for an injunction against the discrimination. If the spur track is taken up, then all who enjoy it will be placed on an equal footing and at an equal disadvantage. But complainant’s claim is that, while others enjoy the spur track, it also should have the same facilities. It is clearly no defense to a charge of discrimination that the facilities furnished the favored person may be withdrawn at the will of the one who grants them.
We are therefore brought to the issue whether or not there is any discrimination between those who have side-track connections on Front street and the complainant. This depends on two questions: First. Is it a discrimination which'can be controlled or restrained by the courts for a railroad company to furnish a side track to one of its customers, and to refuse such accommodation to another similarly situated? Second. Conceding an affirmative answer to the first question, is there such a difference between the facilities demanded by the complainant and those extended to its neighbors on Front street, in respect of the comparative burdens which must be assumed by the railway company in granting them, as to justify the latter in making the distinction it insists upon?
The first question is one full of difficulty, both at common law, upon the principles of which this case must be decided, and also under the interstate commerce act. Because we are able to satisfactorily dispose of the ease on the second question, we reserve consideration of the first until the ease arises which requires it. We aré clearly of opinion that, however unjust and unlawful it maybe for a railroad company having furnished a side track to one shipper to refuse it to another similarly situated, the difference in this case between the business of the complainant and that of the other abutters upon the spur track is so great as to make the refusal of the railroad company to grant the side track to the complainant entirely reasonable. The difference between the duties of a common carrier in the transportation of live stock and of dead freight has been remarked upon more than once by the supreme court of the United States. North Pennsylvania R. Co. v. Commercial Nat. Bank, 128 U. S. 727-734, 8 Sup. Ct. 266; Stock-Yards Co. v. Keith, 139 U. S. 128-133, 11 Sup. Ct. 461. The evidence clearly shows that the delivery of car-load lots of dead freight and the receipt of them by side tracks is much less onerous, and involves much less care and responsibility for the railroad company, than would the receipt of live stock from a private yard by side track. One of the chief reasons why deliveries and shipments of railroad car-load lots by side track are possible and consistent with the conduct of the business of a large trunk line is that the loaded car may stand upon [43]*43a side track for hours, or even a day, until the railroad company finds it convenient to back its engine down and take it. Such delays are utterly impossible in the proper transportation of car loads of live stock. When they are loaded, they must be moved. The evidence shows that in other respects the supervision of the switching of cattle cars would be much more expensive and troublesome to the railway company than dead freight. Indeed, it hardly needs expert evidence to establish it. There is no ground, therefore, for any charge of unjust discrimination against the defendant railway company as between complainant and the Front street shippers.
We come now to the charge of discrimination as between the Butchers’ & Drovers’ Stock-Yards Company and the Union Stock-Yards Company. In the case of Stock-Yards Co. v. Keith, 139 U. S. 128, 11 Sup. Ct. 461, the proprietors of a live-stock yard filed a petition in a railroad foreclosure suit in which a receiver had been appointed, who was operating the railroad under an order of the couih, to compel the receiver to permit the erection of cattle chutes and yards along the line of the road for the receipt and delivery of the live stock of the petitioner. It appeared that all the live stock shipped on the railroad was delivered by the receiver through the stock yards of an incorporated company, at a short distance from petitioner’s yards, under a contract made by the railway company with the stock-yards company, and that the latter charged the petitioner and other shippers and consignees a yardage fee for all stock loaded and unloaded by the railroad company. The circuit court held that it was the duty of the railroad company, as a carrier of live stock, to provide reasonable facilities for the loading and unloading of stock transported by it; that such facilities necessarily included chutes and yards, where the cattle might be kept until called for by the owner; and that it could not, in addition to the customary and legitimate charges for transportation, itself make, or allow any agent it employed to make, a special charge tor merely receiving and merely delivering such stock in and through yards provided for that purpose. The circuit court, therefore, made the order, already referred to, by which the receiver operating the railroad was required either to file in court the written consent of the stock-yards company that the cattle shipped on the railroad might be delivered and received through its yards without a yardage charge, or that the receiver should permit the petitioner to erect chutes and yards adjacent to the line of the railroad for the convenient delivery and receipt of cattle under such reasonable regulations as the receiver or the succeeding railroad company might impose. This order was affirmed by the supreme court, and the ruling was explained by Mr. Justice Italian, who delivered the opinion for the supreme court, in the following language.:
“We must not be understood as holding that the railroad company in this case was under any legal obligation to furnish, or cause to be furnished, suitable and convenient appliances for receiving and delivering live stock at every point on its line in the city of Oovington where persons engaged in buying, selling, or shipping live stock chose to establish stock yards. In respect to the mere loading and unloading of live stock, it is only required by the nature of its employment to furnish such facilities as are reasonably suf[44]*44ficient for the business at that city. So far as the record discloses, the yards maintained by the appellants are, for the purposes just stated, equal to all the needs, at that city, of shippers and consignees of live stock; and, if the appellee had been permitted to use them without extra charge for more yardage,’ they would have been without just ground of complaint in that regard, for it did not concern them whether the railroad company itself maintained stock yards, or employed another company or corporation to supply the facilities for receiving and delivering live stock it was under obligation to the public to furnish. But as the appellant did not accord to appellees the privileges they were entitled to from its principal, the carrier, and as the carrier did not offer to establish a stock yard of its own for shippers and consignees, the court below did not err in requiring the railroad company and the receiver to receive and deliver live stock from and to the appellees at their own stock yards in the immediate vicinity of appellant’s yards, when the former were put in proper condition to be used for that purpose, under such reasonable regulations as the railroad company might establish. It was not within the power of the railroad company, by such an agreement as that of November 19, 1881, or by agreement in any form, to burden the appellees with charges for services it was bound to render without any other compensation than the customary charges for transportation.”
In view of the principles laid down in this case, the complainant has no ground for objection to the arrangement between the Union Stock-Yards Company and the Louisville & Nashville Railroad Company. The latter uses the chutes and yards of the Union Stock-Yards Company to deliver and receive cattle at that point as its station without any yardage charge or fee for the proper loading and unloading of cat lie. The evidence wholly fails to support the charge of the bill that the facilities afforded by the Union Stock Yards are not ample for the business of Nashville. The evidence establishes that no charge is made by the Union Stock-Yards Company for two hours after the cattle are delivered from the cars. There is no evidence to show that it would be unreasonable in the railroad company, were it the owner of the stock yards, to impose' a charge for delay of the consignee in taking his cattle beyond two hours after unloading; and, in the absence of such showing, we cannot say that it is unreasonable for the railroad company to permit its agent, the stock-yards company, to make a charge of two dollars per car for turning the cattle into the pens and keeping them there after such a delay. The discrimination averred and sought to be proven by evidence that, after the cattle have been priced in the pen, they cannot be taken to another yard without paying a fee, concerns the business of the stock-yards company, and not that of the railroad company, whose responsibility ends after the cattle are properly delivered or tendered to the consignee. Of course, the railroad company in delivering the cattle to the stockyards company, to keep until the appearance of the consignee, can incur only a reasonable charge for the keeping of the cattle. More than this, the consignee is not obliged to pay the stock-yards company. If, however, he thereafter chooses to deal with the stock yards company as a factor or sales agent, and to put a price upon his cattle for sale, the charges then imposed by the regulations of the stock-yards company, in case of a withdrawal of the cattle to another stock yard for sale, are wholly outside the question of discrimination by. the railroad company as a common carrier. The contract between the defendants and the Union Company requires [45]*45rates charged by the latter to be reasonable. There is no attempt in the record to show that the charge for the simple keep of the cattle in the pens is unreasonable or any higher than the railway company itself might charge for such service.
The decree of the court below is affirmed, with costs.